Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/00144_10IT.html
Cite as: [2010] NIIT 00144_10IT, [2010] NIIT 144_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 144/10

CLAIMANT: Joanne Hamilton

RESPONDENT: Tesco Stores Ltd

CERTIFICATE OF CORRECTION

In the decision issued on 31 August 2010:-

(i) In paragraph 1(i) “1 October 2010” should read “1 October 2009”;

(ii) In paragraph 4(v) “30 September 2010” and “30 December 2010” should read “30 September 2009” and “30 December 2009” respectively.

Chairman:

Date:

1.

THE INDUSTRIAL TRIBUNALS

CASE REF: 144/10

CLAIMANT: Joanne Hamilton

RESPONDENT: Tesco Stores Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that it does not extend time for bringing the claimant’s claims, either on the basis of the ‘reasonably practicable’ or ‘just and equitable’ grounds in relation to unfair dismissal and disability discrimination respectively. It therefore does not have jurisdiction to hear these claims.

Constitution of Tribunal:

Chairman (sitting alone): Mr D Buchanan

Appearances:

The claimant was represented by Mr T Ritchie, Barrister-at-Law, instructed by Edward Dougan & Company. Solicitors.

The respondent was represented by Ms A Jones, Solicitor, of Jones Cassidy Jones, Solicitors.

Thompsons McClure, Solicitors, who had previously acted for the claimant, had been given notice of the proceedings, and were represented at the hearing.

1.	(i)	The claimant, Mrs Hamilton, was employed by the respondent company as a delivery driver for Dot.Com. Her employment commenced on 5 June 2008 and although stated in her claim form that it ended on 30 September 2009, it was common ground by the time of these proceedings that it in fact ended on 1 October 2010.

	(ii)	Her employment ended as a result of her dismissal, and on 8 January 2010 a claim form alleging unfair dismissal and disability discrimination (the alleged act of discrimination being her dismissal) was presented to the tribunal.

	(iii)	It was again common ground between the parties that these claims are out of time. The claimant did not appeal her dismissal, and therefore cannot rely on the provision in Regulation 15(2) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 relating to extension of time-limits. The parties agreed that a pre-hearing review on the issue of time-limits was appropriate, and that such a pre-hearing review would be in accordance with the overriding objective and the guidance provided in *Ryder v Northern Ireland Policing Board [2007] NICA 43*. If the claims are time-barred, that would determine the outcome of the matter as the tribunal would not have jurisdiction to hear these claims.

	(iv)	The matter was therefore listed for a pre-hearing review on the following issues:-

(a) Whether the tribunal has jurisdiction to entertain the claimant’s claim of unfair dismissal in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time-limit for presenting such a claim?

(b) Whether the claimant’s claim of disability discrimination has been presented within the time-limit prescribed by Paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995? If not, is it just and equitable, in all the circumstances of the case, to consider such a complaint notwithstanding it is out of time?

		As the parties had agreed that the complaints were out of time, the hearing revolved round whether the respective time-limits should be extended.

2.	(i)	A feature of this case was that correspondence written on behalf of the claimant appeared to suggest that the reason her claims had not been lodged in time was because of fault on the part of her former solicitors, Messrs Thompsons McClure. The pre-hearing review was initially listed for 14 June 2010 and Messrs Thompsons McClure were given notice of, and attended, those proceedings. (See : *Riley v Tesco Stores Ltd & Another [1980] IRLR 103, at 107*, where it is suggested that where a third party is implicated in some fault by an employee’s evidence, industrial tribunals should consider whether that third party should be given an opportunity of answering what is said about them).

	(ii)	The pre-hearing review scheduled for 14 June 2010 was adjourned on the joint application of the parties. At the resumed pre-hearing review, following contact and communication between the claimant’s former and present solicitors, it was stated in open tribunal by the latter, on behalf of the claimant, that it was no part of her case that Messrs Thompsons McClure were in any way at fault in relation to the delay in lodging the claimant’s claim, that they had co-operated with the claimant’s present solicitors in clarifying matters and resolving any confusion, and that the claimant was grateful for this co-operation.

3. In order to determine the matters before me, I heard evidence from the claimant, and had regard to the documentary evidence which was agreed. Unfortunately, even allowing for the claimant’s difficulties to which I refer below, I found her evidence vague, confusing, and at times contradictory and found myself unable to place reliance on it in any important aspect.

I find the facts set out in the following paragraphs.

4.	(i)	Following her dismissal from her employment on 1 October 2009, the claimant made contact with her trade union representative immediately afterwards.

	(ii)	On 5 October 2009, she attended her former solicitors, Thompsons McClure, in connexion with a claim for personal injuries at work. (This personal injury also formed the backdrop to her unfair dismissal and disability discrimination claims.) Thompsons McClure were the union’s nominated solicitors.

	(iii)	She originally made the case that she had instructed Thompsons McClure about her tribunal claim, but having seen their file accepts that this was not the case.

	(iv)	The claimant filled in the industrial claim form herself, in her own handwriting. It was not signed (other than by what appears to be indistinct initials) or dated by her, though it did name a solicitor at Thompsons McClure as her representative.

	(v)	The claimant gave evidence that she was aware of the time-limits for industrial tribunal claims, and that the time-limit for her claim expired on 1 January 2010. (In fact the claimant had erroneously given the date of her dismissal as 30 September 2010 on her claim form, and had consistently referred to that date throughout it, so therefore, on her account, her expectation would have been that time expired on 30 December 2010.)

	(vi)	She filled in the form between Christmas and the New Year. She ‘vaguely’ remembers posting it. She suggested she had done this on Monday 28 December 2009 though as this was a bank holiday, post offices would have been shut and there would have been no collections. She hoped the form would be received in time by the Office of the Tribunals, but accepted it should have been posted before Christmas.

5. At the relevant time, the claimant did have problems in her private life, which were a cause of stress to her. The injury at work prior to her dismissal required her to have surgery in September 2009, and she claimed there had been a subsequent deterioration in her health, though no medical evidence was adduced in support of this.

She also went through a divorce and had moved house three times.

However, I am unable to accept that any of these problems, or any combination of them, when weighed against other facts, prevented her from lodging her claim in time.

6.

(i)

I have, in general, found the claimant somewhat disingenuous and unconvincing in her evidence.

Although she makes the case that she was confused and labouring under misapprehension, the evidence does not support this. By way of example, on 17 February 2010 it was stated in correspondence on the claimant’s behalf that she did not recall the name of the solicitors she had initially consulted (ie Thompsons McClure). This was despite the fact that a few weeks previously on 2 February 2010 she had written to a named solicitor in that firm specifically stating that she should not have named her as her representative in her claim form.

(ii)

The claimant’s greatest difficulty is that if she did in fact believe Thompsons McClure were acting for her in her industrial tribunal claim, then it is difficult to understand why she filled in a claim form herself and posted it.

7. In these circumstances there is no material before me which provides any basis for an extension of time. Consequently, the tribunal does not have jurisdiction to hear the claimant’s claims. I make it clear that in reaching this conclusion, I have kept in mind that the ‘reasonably practicable’ and ‘just and equitable’ grounds for extending time are separate tests.

Chairman:

Date and place of hearing: 23 August 2010, Belfast

Date decision recorded in register and issued to parties:

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